Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

The Prop 8 Oral Argument

This morning, the Supreme Court heard oral arguments in Hollingsworth v Perry, the challenge to the constitutionality of California’s Prop 8. There are lots of reports on how those arguments went and Oyez has a very cool page up that syncs the audio of those arguments with a transcript as well. Lyle Denniston’s recap of the arguments suggests that Kennedy may well be looking for a way to punt the case:

Supreme Court Justice Anthony M. Kennedy, in an unusually candid process of elimination of options in public, on Tuesday worked his way through the ways for dealing with California’s Proposition 8 ban on same-sex marriage and seemed strongly tempted to just take a pass. He appeared to be troubled about the Court entering “uncharted waters,” on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.

Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out. One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench. The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted. A decision like that, though, could take weeks or months to reach…

As Kennedy openly reacted to these proposals, he seemed to be losing patience, and well into the argument said “there is a question whether this case was properly granted” — that is, was it a mistake for the Court to accept the Hollingsworth appeal for review. The lawyers at the lectern said it was a proper case that had been fully litigated, but Kennedy did not drop the idea.

Although that possibility did not pick up definite support across the bench, the fact that Kennedy was ready to consider it seriously may have been all that counted. It was quite clear that the Court’s conservatives had wanted the case to be reviewed, because of their dislike for the ruling by the Ninth Circuit Court striking down Proposition 8. But a decision by a controlling number of Justices to end the case as “improvidently granted” would be a way to avoid an even more widely splintered decision that might settle nothing at all of constitutional consequence on marriage.

I have been operating under the assumption that one side or the other had wanted that built-in procedural out in both cases so they had a way of disposing of them without reaching the merits in case they thought they couldn’t get Kennedy’s vote. But if Kennedy himself wants to take that out, it’s likely to be taken. Tom Goldstein had exactly the same reaction:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

Either of those outcomes would mean that the lower court ruling would stand and Prop 8 would be invalidated, but it would have no implications outside of California at all. Neither side would be satisfied with such a ruling, of course, but the pro-equality side would be happier than the anti-equality side.

Comments

I haven’t followed the entire exchanges as yet but it seemed in the questioning of Cooper by Roberts that he too might be looking for a way to punt here as he stopped the former’s presentation and requested him to first argue about the standing issue. Another tact the court could take, which nobody has brought up yet, is to send the case back to the District Court for further testimony or to the appeals court for further argument. That, of course, would just postpone the evil day or reckoning. Sooner or later, the court is going to have to weigh in on this issue, even if more states change their laws to recognize same sex marriage.

I will not be surprised if the final tally is 4-4-1, with Kennedy holding to his “we never should have gotten the case” and voting to abstain. My understanding is that this would be as good as a punt: with no majority opinion, the 9th Circuit ruling stands and marriage equality returns to California without a national precedent.

I suppose the question could be asked…if the defendants lacked standing to bring the case before the USSC, did they also lack standing to bring the case before the Ninth Circuit appelate court? The Ninth Circuit *did* ask for–and get–a ruling from the Ca. Supreme Court about standing. As I recall, the Ca. court said, basically that if the State was unwilling to defend, then allowing the original backers of Prop. 8 seemed reasonable to avoid an executive veto by failure to defend.

Now the interesting point to this is… The Ninth Circuit tossed Prop. 8 on the grounds that the state could not grant a right and then take it away. SSM was established by action of the Ca. Supreme Court, which rather pointedly refused to stay its ruling pending the upcoming election in which Prop. 8 passed. The *trial* court invalidated Prop. 8 on 14th Amendment Equal Protection grounds.

So if the Ninth Circuit decision rules, it only applies to California. If the trial court decision rules, then it applies to all states (but isn’t counted as precedent….but it’d get cited anyway).

Something of interest, and I haven’t seen any commentary that touches on this, while the Ca. Supreme Court threw out all SSMs conducted in the first attempt, the proponents of Prop. 8 didn’t seek to do that for the 18 *thousand* SSMs that took place between the court ruling that gays could marry and the passage of Prop. 8. If barring gays from marrying is *so* important, and *so* “devastating” to the institution of marriage…why didn’t/don’t they try to get those marriages cancelled?

I will not be surprised if the final tally is 4-4-1, with Kennedy holding to his “we never should have gotten the case” and voting to abstain. My understanding is that this would be as good as a punt: with no majority opinion, the 9th Circuit ruling stands and marriage equality returns to California without a national precedent.

As a technical matter, this is a very unlikely ruling. That’s not to say the Court won’t reach exactly this result, but the way they’d do it technically would be different. Kennedy wouldn’t abstain, that’s just not really the way it works.

I would guess that it would break down with a 5-4, or 6-3 case in favor of dismissing the case as the plaintiffs lacking standing. This is the big procedural out.

Then there’d be a complicated set of concurrences and dissents for various reasons. There’d probably be a dissent with 3-4 votes for accepting cert and deciding the case for the Plaintiffs, and then perhaps a seperate concurrence, also joined by 3-4 judges stating they side with the majority, beliving their is no standing, but because this is an issue that is repeatable, they should consider it anyway, and if they were to reach the merits, they’d vote in favor of recognizing a right.

Also, it’s already been pointed out elsewhere, but the response by Ted Olsen to Scalia’s question shows his brilliance as an advocate.

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

The question Scalia asked is a relatively common conservative argument that liberal judges are fond of suddenly “discovering” new rights in the constitution, and this is something which Scalia, as an originalist is adamantly against.

The precise answer from Olsen’s argument, either from equal protection or due process grounds, would be 1868, the year the 14th amendment was passed. Scalia would then ask (snarkily I’m sure) how is it that we’ve failed to recognize that the 14th amendment granted a right to same sex marriage for almost 150 years.

However, both Loving (interracial Marriage) and (Brown) were both based on the 14th amendment as well and come approximately 90 years and approximately 100 years after the 14th amendment was passed, and it very effectively throws the argument back in Scalia’s face, leaving him sputtering a bit because he doesn’t want to denounce loving or brown from the bench.

Either of those outcomes would mean that the lower court ruling would stand and Prop 8 would be invalidated, but it would have no implications outside of California at all.

Deciding that the defendants lack standing doesn’t exactly mean SSM would be legal all over California.

If the decision is that the Court should not have taken the case, as Kennedy seemed to favor, that would leave in place the 9th Circuit’s ruling, and SSM would resume in California.

But if the decision is that the defendants lack standing, that would vacate the 9th Circuit’s ruling, since if they lack standing at the SC, they almost certainly lack standing at the Circuit Court, and the District Court’s judgment would remain in place. This would affect the parties in the case, but there would be more hard-fought litigation about whether and how Prop 8 would be applied elsewhere in California. It would almost certainly be back in the 9th Circuit and the SC in a few years.

Excuse me, the non-lawyer, but it is my information that Kennedy could always recuse himself without giving a reason. AFAIK, he does not have to do it before oral arguments, although I assume he would have to do it before the locked room discussions take place between the justices.

Excuse me, the non-lawyer, but it is my information that Kennedy could always recuse himself without giving a reason. AFAIK, he does not have to do it before oral arguments, although I assume he would have to do it before the locked room discussions take place between the justices.

It’s not to say that he couldn’t but something like that would be somewhere between extremely unlikely and absolutely unheard of. And if Kennedy were to do that, the amount of rage that he would get would make the Rage Roberts got over the healthcare decision look tame in comparison.

The precise answer from Olsen’s argument, either from equal protection or due process grounds, would be 1868, the year the 14th amendment was passed. Scalia would then ask (snarkily I’m sure) how is it that we’ve failed to recognize that the 14th amendment granted a right to same sex marriage for almost 150 years.

I was thinking the same thing while listening to the arguments. Would it have been a good response to suggest that although it was unconstitutional with the passage of the 14th, it has never been tested until now? Isn’t that the point of having a SCOTUS? Constitutionality is determined in front of the Court when someone brings it to the Court.

Also, am I reading to much into Justices Roberts and Alia (IIRC) references to the definition of marraige being thousands of years old?

There’s another aspect to the California case that I haven’t seen mentioned so far. If the Justices should rule to uphold the 9th Circuit Appeal’s Court Ruling that once a right is extended, it can’t be subsequently taken away, this would have repercussions on the 9 states + DC where same sex recognition laws are in effect. Such a ruling would mean that the laws in those states are now locked in concrete and can’t be overturned by the legislature or by referendum in those states. Thus, for instance, if the Rethuglicans take over the Senate in 2014, they would be prevented from overturning DC’s same sex marriage recognition act.

Even in the worst case scenario in which Prop 8 and DOMA are both upheld, the current trends are going to continue. More states will pass marriage equality laws and all the apocalyptic predictions from the right will continue to fail to come true. Eventually, the federal DOMA will be repealed as well. Conservatives will continue to fight against the tide of history, of course, but they’re fighting a losing battle.

Also, am I reading to much into Justices Roberts and Alia (IIRC) references to the definition of marraige being thousands of years old?

1. The definition of marriage isn’t thousands of years old..

The details differ widely between culture to culture and time to time. Biblical marriage allows men to have as many wives as they can round up and as many sex slaves as they can afford. In the USA, only marriages registered with the state or various common law marriages are recognized. Just having a wedding in a church doesn’t make one married.

2. It’s irrelevant. Lots of things are thousands of years old. Slavery, genocide, stoning heretics and apostates to death, autocratic leaders, and treating women and children as property are all thousands of years old.

We are better than the ancient ages. Animal cruelty and slavery are outlawed. We live in democracies, not states where the Emperor got into power by killing the previous one.

I don’t understand how J. Scalia can credibly refer to the Equal Protection Clause as justification for striking down miscegenation laws while avoiding that same clause when considering anti-gay marriage prohibitions. Or why Ted Olson didn’t grab the cherry Scalia hand him. Here’s the exchange [H/T Andrew Sullivan]:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.) [Heath bolded]

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional –

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

In fact, in all their pleadings up thru the appeal to the 9th Circuit (I don’t know about the pleadings in the Supreme Court case), the Prop 8 proponents have asked that the 18000 CA same-sex marriages which took place during the May-Nov 2008 window (including mine) also be invalidated, i.e., that Prop 8 be made retroactive. That request has been uniformly ignored, since the courts in question have both ruled Prop 8 unconstitutional.

If the trial court decision rules, then it applies to all states (but isn’t counted as precedent….but it’d get cited anyway).

Technically, as we lawyers put it, the trial court decision is persuasive, but not binding, precedent.

Michael Heath @ 16

… why Ted Olson didn’t grab the cherry Scalia hand him.

I think he did. Don’t forget that Olson (a very good lawyer) already knows Scalia is a vote against his position. When he responded to Scalia, he was really talking to Kennedy (and, to a lesser extent, Roberts) who is well aware of Scalia’s bugaboos. He was making two points: 1) the Court doesn’t always follow public opinion (certainly not in Brown and not even in Loving) and 2) asking when violating a right became unconstitutional is the wrong question … the question should be ‘Does the fact that the Court has never addressed that violation before constitute a justification to allow the violation to continue?’

Being far more ignorant of the subtleties, juris prudence and complexities involved, I can only suggest that this one looks, and sounds like, one for the long grass.

It would seem doubtful that a judgement would be passed that enshrines SSM in national law, more like mire it in a legal swamp that state after state legislature will spin in and splatter all bystanders and victims in equal perfidy.
The topic looks like being thrown back to state judiciary, let them sort it out depending on bigotry and level of rampant homophobia apparent in their state.

Basically punted into the long grass where it will fester a while before it returns to haunt the bench a few years down the road.
It would seem there is no overriding desire on behalf of at least half the justices to resolve the issue in question …should gay couples have the right to marry… seems there is a little cowardice and personal bias, it is expected no resolution to anyone’s satisfaction will be enacted.

Prop 8 will probably be repealed eventually, it is fatally flawed anyway, but other ‘barriers’ will be found, there will be no bar to future prop’s just as insidious as prop 8 based on this issue.

I hope I am wrong, but I cannot see the pompousness of either Scalia or the vexation of Kennedy, who I sense has come up against the secular ethics versus the xtian morality, and secularism will not be a winner in this ring, actually doing humanity any favours let alone a section of society that is actively discriminated against even with the present laws.

Olson could probably have made a stronger response, by saying it became unconstitutional when the 14th was ratified but it became clear after Loving v Virginia clarified that what the people who framed ad voted on the amendment believed, and what the public at the time thought it meant is secondary to the actual text.

I’ve seen the following argument and don’t know enough to judge if it is any good or not.

-A lot of politicians hate same sex marriage
-A pro equality ruling would galvanise them and could lead to a constitutional amendment banning ssm
-Therefore if you want marriage equality long term you should hope for a punt so the issue can come back at a later time when there won’t be the votes to amend the constitution

Is this valid, are there really the votes for such an amendment and if so would they wait for the court before starting the process?

As we sit here today, I believe 42 Senators are now on record as supporting same sex marriage so a Constitutional Amendment. which requires a 2/3 vote in both,houses would not pass. Of course, this could change if the Rethuglicans take over the Senate in 2014.

If I recall correctly, the 9th Circuit was hearing an appeal of Perry v Scharzenegger. I’m not a lawyer, but I think that vacating the 9th Circuit’s decision would leave Perry‘s stronger invalidation of Prop 8 intact, at least in California.

If the history of the “debate” on gun control is a guide, all it takes is money (in the form of lobbying and campaign contributions, not, y’know REAL bribery) to change the minds and hearts of various congress critters so that they come around to your way of thinking–regardless it’s logic. Fuckweasels and money seems a potent combination, potent enough to defeat rational thinking and common sense.

@matty and slc1:
An amendment to the constitution also requires a 3/4 vote by the states. Since approval of SSM now runs well over 50%, I don’t see that happening unless public sentiment changes radically.

“If the Justices should rule to uphold the 9th Circuit Appeal’s Court Ruling that once a right is extended, it can’t be subsequently taken away…”

Just out of curiosity, if they allowed the 9th Circuit ruling to stand, based upon the reasoning used in that ruling, couldn’t it be used as precedent (even if only in that circuit) for fighting back against the many encroachments on women’s reproductive rights since Roe?

@slc1:
True, but since you mentioned, “this could change if the Rethuglicans take over the Senate in 2014″, I was just pointing out that that was irrelevant. Of course, for them to win, magic almost must occur, so I suppose anything’s possible.

On the other hand, in 2014, 21 Dem and only 14 Rep Senate seats will be up for election, so the Reps need to change only a few seats… Of course, that’s what they said in the last election.

I think that vacating the 9th Circuit’s decision would leave Perry‘s stronger invalidation of Prop 8 intact, at least in California.

If the 9th Circuit’s decision is vacated, Judge Walker’s broader decision would remain in effect. This would apply to the parties to the suit and the Northern District of California. Just as Dover may have been influential, it did not apply outside of the District in PA where it was decided, the same is true here. On the basis of Walker’s decision, the state could order all counties to issue licenses to everyone, but there would inevitably be conservative counties that would balk, and it would end up back in court, in front of the 9th Circuit again, then the SC, if they took it, in a few years.

An amendment to the constitution also requires a 3/4 vote by the states. Since approval of SSM now runs well over 50%, I don’t see that happening unless public sentiment changes radically.

Mere 50%+ approval isn’t enough, since the distribution is non-uniform. It’s also complicated by state legislatures being gerrymandered to be disproportionately Republican, and both Democratic and Republican state legislators tending to significantly over-estimate how conservative their district’s voters actually are.

In 33 states, Republicans control the more numerous house of the legislature; given the aforementioned overestimation, ratification seems generally likely for those. Iowa is the only of those with Gay marriage currently legal, and that by court ruling; the state GOP continues trying to overturn that by state amendment, so ratification of a federal amendment seems plausible. Ratification might also be plausible in Kentucky (under narrow Democratic control but relatively red by national standards), and West Virginia (ditto). Minnesota would be more difficult, as it’s currently tipping in favor, but that possibly be forestallable in the legislature with a nationally-funded pressure campaign with unlimited deep Red pockets — at least long enough to secure Ratification. That’s 36 states — with 38 states required for ratification.

However, those last two would be incredibly hard to get. Hawaii, New York, Vermont, Rhode Island, Maryland, Massachusetts, Washington, Illinois, and California hold no hope for the GOP. Connecticut, Delaware, Maine, New Jersey, and Oregon would be insane long shots. That leaves the GOP needing two of New Mexico, Colorado, and Nevada, all three of which went blue in the 2012 presidential election. CO’s 37-28 D-leaning legislature just allowed Civil Unions, and the electorate polls 47% supporting gay marriage; NM voters lean plurality in favor since 2011, the legislature leans 38-32 D, and there is no existing law one way or the other. Short of bribery, both seem a serious uphill fight. NV isn’t much more promising, with a 27-15 D lean and a domestic partnership law. Assuming the now-common ratification period is part of the amendment, it would make for a seven year period when those 14 legislatures would be watched with hawk-like vigilance by both sides, and legislators likely subject to all manner of dirty tricks pressure.

Alternately, the Amendment might be sent directly to state conventions… which would be tricky to predict, but looks an even more uphill fight, from Nate Silver’s latest model. Worse for opponents, the model also suggests that such an Amendment would have a life-expectancy even shorter than Amendment XVIII — though I think it’s a bit optimistic. (Youth attitude shifts are less pronounced in the South.)

But… this is all pretty moot, putting the cart before the horse. The GOP getting rid of enough Democrats in 2014 to get an Amendment past the US Senate is implausible, at best; and by 2016, it’s likely to be harder still to get the needed ratifications.

I thought the same thing about Olson’s response. Why didn’t he just say it’s also 1868 with the 14th Amendment?

I believe the reason is that that dramatically expands the scope of the trial. It makes it a lot more “Gay Marriage for everyone everywhere or Prop 8 stands.” I think he was trying to avoid having the justices make that kind of decision. He wanted to give them an out for allowing Prop 8 to be struck down but not rule on gay marriage everywhere.

The Rethuglicans aren’t going to get anywhere near 2/3 of the Senate in 2014. I would also point out that they don’t control anywhere near 2/3 of the House either.

Actually it appears that the number of Democrats+Independents+Portman in the Senate now on record as supporting same sex marriage is up to 48 as several have boarded the train in the past few days. I see no chance of such a bill getting anywhere near 2/3 of the Senate. I don’t think it can get 2/3 of the house either. By the way, not all of the Rethuglicans in the House are opposed to same sex marriage. For instance, Florida Congresswoman Ileana Ros-Lehtinen is on the record as supporting same sex marriage and she ain’t no RINO.

Re abb3w @ #35

The problem with state conventions is that the opportunities for adding poison pill amendments to the basic bill would almost certainly doom the chances of 3/4 of the state conventions passing anything. For instance, the folks in Texas and Florida might add an amendment eliminating equal state representation in the Senate. That would be completely unacceptable to the smaller states.

The problem with state conventions is that the opportunities for adding poison pill amendments to the basic bill would almost certainly doom the chances of 3/4 of the state conventions passing anything.

You’re thinking about the national convention approach for proposing the text of the Amendment; I was thinking of the procedure used with Amendment XXI, which was drafted and passed by 2/3 the House and Senate, but sent to state ratifying conventions rather than the legislatures.

(Yes, this still requires the 2/3 vote in House and Senate, which ain’t happening. However, the analysis of ratification by the states is trickier when ratification is by conventions rather than legislatures.)